Hiring Temporary Foreign Workers for Nonagricultural Industries

ANR-1245, New Nov 2003

Josh McDaniel, Extension Specialist, Assistant Professor, Forestry and Wildlife Sciences, Auburn University

The forest industry in the South has become one of the largest participants in the federal H-2B Temporary Nonagricultural Worker Program. Temporary, foreign workers are being recruited to work in tree planting, herbicide application, and tree thinning. Landscapers, horticultural nurseries, poultry processing facilities, and service industries across the Southeast are also turning to the H-2B program to fill their labor needs. In the
H-2B program, businesses receive work visas for temporary foreign workers to work on specific jobs for a set period of time, normally less than a year.

The program has a number of benefits for employers, most notably the assurance of a legal, documented workforce and the reduction of labor turnover and the resulting loss in productivity and investment in training. However, the program is not without costs. The negotiation of a series of bureaucratic hurdles in receiving labor certification and issuing visas to the workers can take time and cause frustration. This publication provides background information on the program and details the criteria for qualifying to recruit and hire temporary or seasonal workers from outside the United States. This publication also describes the application procedures and provides contact information and references for those wishing to find out more about the
program.

Background

The H-2B program was cre-ated by the Immigration Reform and Control Act of 1986 to identify a potential labor source for nonagricultural industries facing labor shortages. It is related to the H-2A program for agriculture, but there are notable differences. Unlike the H-2A program, the H-2B program limits the number of foreign workers who can receive H-2B status to 66,000 during any one year. The overall number of workers entering the United States under this program has been growing steadily. After many years of nonutilization, the total number of workers admitted reached close to the limit in 2002. Throughout the early to mid-1990s, forest contractors requested the greatest share of H-2B visas, but in recent years, a wide range of industries including plant nurseries, poultry plants, shellfish processing facilities, and landscapers have become involved in the program. In contrast to the H-2A program that requires employers to provide housing and transportation to the workers, the H-2B program has no housing requirements for employers. However, providing workers with affordable, sufficiently comfortable housing is good practice and will likely make for a successful work season.

The H-2B program allows nonagricultural employers to recruit foreign workers if they can prove that they have unsuccessfully attempted to hire local workers. The U.S. Department of Labor reviews and makes decisions on H-2B visa applications and, along with the Bureau of Citizenship and Immigration Services, enforces federal regulations regarding the program. The H-2B visa only allows individuals to work for the original employer that submitted the visa request. The workers are not allowed to apply for a green card or other immigration status during their period of stay in the United States. After an H-2B contract is finished, the workers must return to their home countries and wait for their employers to hire them again, or they can apply for a different visa status.

Qualifying Criteria

The H-2B visa category is similar to the H-2A in that both require the worker to be temporary and that a labor certification demonstrate the unavailability of U.S. workers. For the H-2A pro- gram, the work should be seasonal. For the H-2B program, work can be in one of four basic types of need:

• One-time occurrence. The employer must show that he or she has not employed work- ers to fill the position and that a need for such services will exist in the future. This must be a temporary event of short duration.
  
  
• Seasonal need. These services are tradition- ally connected to a particular time of year because of a recurring event or pattern. The employer must specify the time of year when the workers are needed and the dates the services are not needed. Therefore, the period of time each year when the workers are not needed must be fixed and pre- dictable. Examples of seasonal workers are readily found in natural resources related industries. These workers might be tree planters or fishery workers.
  
  
• Peak-load need. The employer must show that he or she regularly employs permanent workers to perform the services but has a temporary need for additional staff because of a short-term demand. The temporary workers must not become a permanent part of the employer's workforce; that is, the need must not be ongoing. Examples of peak-load workers include those in plant nursery labor.
  
  
• Intermittent need. The employer must demonstrate that he or she has an occasional but not a regular need for workers.
  
  
• The job must be for less than 1 year.
  
  
• No qualified and willing U.S. workers can be available for the job.
  

How to Apply

• The prospective employer files a completed Form ETA 750 to the local State Workforce Agency serving the area of proposed employment. In Alabama, the SWA is the Department of Industrial Relations. Their contact information is at the end of this publication.
  
  
• The SWA instructs the employer on recruitment requirements, appropriateness of the wages and working conditions offered and refers qualified candidates to the employer for interviews. Recruitment by the employer usually involves advertising in local newspapers, checking elec- tronic databases, and consulting with local employment agencies and unions.
  
  
• The employer prepares a recruitment report sum- marizing the results of the effort. This recruitment report includes names and addresses of applicants and lawful reasons for not hiring any interviewees that did not qualify for the job.
  
  
• When evaluated, applications for certification are forwarded by the local SWA to the appropriate regional office.
  
  
• The DOL regional certifying officer grants certifi- cation if he or she finds that qualified individuals in the United States are not available and that the terms of employment will not adversely affect the wages and working conditions of workers simi- larly employed in the United States.
  

Requirements

The H-2B has visa requirements intended to protect workers from exploitive working conditions. Employers are required to provide the following benefits to workers:

• The same wages as comparable U.S. workers. This follows the prevailing wage established by the DOL.
  
  
• An earnings statement detailing the worker's total earnings, the hours of work offered, and the hours actually worked.
  
  
• Worker's compensation insurance to the H-2B workers.

For More Information

All initial applications to the H-2 program begin at the State Workforce Agency. Contact informa- tion for the SWA for Alabama is as follows:

Alabama Department of Industrial Relations
649 Monroe Street, Room 2805
Montgomery, AL 36131
Phone: (334) 242-8020
Fax: (334) 242-8585
http://dir.alabama.gov/

Contact the regional office for the U.S. Department of Labor at (404) 562-2131 or consult the U.S. Department of Labor Web page regarding the H-2B program at: http://www.foreignlaborcert.doleta.gov/h-2b.cfm

Contact the Atlanta District of the Bureau of Citizenship and Immigration Services at the following:

Bureau of Citizenship and Immigration Services
Atlanta District
Martin Luther King Jr. Federal Building
77 Forsyth Street SW
Atlanta, GA 30303
(800) 375-5283
http://www.immigration.gov/graphics/